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FAQs regarding State Public Health Orders on Required Vaccination or Testing of Health Care workers

June 24, 2022 27162

Last summer, the California Department of Public Health issued a couple of orders related to required COVID-19 vaccination or testing of health care workers. This resource addresses questions raised by the July 26, 2021 order which impacts California dental practices. It does not address questions related to the local public health orders which mandate COVID-19 vaccination for dental health care workers within their respective jurisdictions. CDA provides links to these local public health orders here.

General mandate questions

Q. Could a dentist be held liable if a patient contracts COVID-19 after receiving treatment in an office where not all employees were vaccinated (but all other protocols were followed)?

A. The best defense from this type of liability claim is to ensure that strict infection control protocols remain in place and that signed informed consent is on file for each and every patient. Neither CDA nor TDIC recommends utilizing a COVID-specific informed consent form with patients as it may lead to a false sense of security and does not provide immunity for dentists who are negligent in following current and appropriate infection control guidelines. All informed consent forms should include acknowledgment of the risk of infection from dental treatment, including COVID-19. TDIC offers sample forms in multiple languages.

Q. What are the options for employers who have employees who refuse vaccination and weekly testing?

A. One option is to place the employee on unpaid leave should they refuse to comply with the law. Document the leave in writing with the expectation of periodic communication. Dentists are encouraged to seek legal advice before separating an employee for failing to comply with the order.

Q. If an employee refuses vaccination and weekly testing, and we need to terminate employment for that individual, will they qualify for unemployment since this is due to a public health order?

A. Termination of an employee who refuses to vaccinate or submit to weekly testing poses a legal risk and should only be done after speaking with an employment law attorney.

In general, employees terminated for breaking a business policy may not be eligible for unemployment benefits and payments. Eligibility for unemployment benefits is dependent on the individual’s circumstances. Employers who wish to appeal an EDD’s determination when receiving a Notice of Unemployment Insurance Claim Filed (DE 1101CZ) should do so within 10 days of receiving the notice.

Q. Does the mandate apply to all unvaccinated and incompletely vaccinated staff in a dental practice, including non-clinical staff?

A. Yes, this mandate applies to dental office staff (including independent contractors and nonclinical staff) if they are working in any area where patients will be. Here is the definition of “worker” from the actual order:

"Worker" refers to all paid and unpaid persons serving in health care, other health care, and congregate settings who have the potential for direct or indirect exposure to patients/clients/residents or SARS-CoV-2 airborne aerosols.”

Q. Are owner dentists required to have proof of vaccination or be tested just as employees of the practice will be required to do?

A. Yes. If the owner dentist works in the practice, then the owner must have proof of vaccination or be tested weekly.

Q. When do unvaccinated employees have to start testing?

A. The order is effective Aug. 9 and health care facilities have until Aug. 23 to be in full compliance with the order.

Q. Who pays for testing or vaccination of temporary staff?

A. This will vary based on whether the temporary staff is an employee of an agency or the dental practice. The employer of record for the temporary staff is responsible for the testing cost (in the event the employee doesn’t have health coverage) and paying for the time to have the employee tested (when outside of normal working hours).

Q. With the implementation of the mandate, how should a dental office address patient questions about the vaccination status of employees?

A. State and federal privacy laws prohibit employers from sharing employees’ private medical information. Additionally, you are required to maintain COVID-19 vaccine documentation or status confirmation, as well as other medical or accommodation documents, in a way that is confidential and stored separately from the employee’s personnel files. Access must be limited only to those with a legitimate business need to know.

One way to respond to patients is to let them know that the health information of the dental team is confidential and subject to privacy laws, just as it is for all patients of the practice. Reinforce that the practice is adhering to all state and federal requirements to ensure the safety of its patients and the dental team. This also provides an opportunity to discuss whether the patient is vaccinated. Resources for that discussion may be found in CDA’s Vaccine Confidence Toolkit.

Q. Are there any risks with having my employees wear buttons or stickers indicating their vaccination status while at work?

A. If a staff member wears a button or sticker noting their vaccination status voluntarily, it’s not a violation of confidentiality. Employers need to be careful about coercing or pressuring employees to share or demonstrate their vaccination status and they certainly can’t retaliate if someone doesn’t want to wear a button or sticker stating their status.

Should a patient ask why an employee isn’t wearing a button/sticker indicating they’ve been vaccinated, the response should note that employee vaccination status is confidential and subject to privacy laws. An employee may wear an indicator of vaccination status voluntarily, but they cannot be required to share that status with patients.

Q. Who will enforce the requirement? How do I track the information, and do I need to report it?

A. Under the state public health order, the California Department of Public Health will take the action necessary to protect public health, which will include enforcement from the state’s regulating entities. Complying with the health order is the best way for dental practices to help protect the health and welfare of their patients and dental team, as well as assist in the pandemic mitigation efforts. Failure to comply with the health order may result in additional disease spread along with potential financial and liability risk to the dentist as both an employer and health professional.

Employers should have a plan in place for tracking test results, conducting workplace contact tracing, and reporting results to local public health departments as requested. No specific documentation mechanism is required. Employers can create a spreadsheet or use an existing platform to track confidential employee documents. All documentation must be kept in a safe and confidential manner with limited access to those who need it. CDA offers templates to track dental team members’ vaccination status and weekly testing.

Q. Where does CDA stand on vaccine mandates?

A. The COVID-19 vaccines have been proven to be safe and effective, and as such, CDA strongly encourages all dental team members to get vaccinated and boosted when advised by their health care provider or county order. CDA will continue to develop new resources to help members instill vaccine confidence among dental team members and patients.  However, the implementation of any state-ordered vaccine mandate should consider concerns about dental team members leaving the profession when a severe workforce shortage has been exacerbated during the pandemic. Additionally, dental offices have always adhered to strict regulations and protocols for infection control and prevention of disease transmission and make the safety of patients and staff a top priority.

Q. Do after-hours cleaning crew staff fall under the mandate as well?

A. Yes, if they are employed by and work for the practice. If the crew is employed by another agency, then the agency is required to comply with any mandates for their industry.

Q. Does the Aug. 5 mandatory vaccination apply to oral surgery clinics?

A. Oral surgery clinics are considered dental offices and fall under the July 26 order unless the site lies within a county that has opted to include dental offices within a stricter local public health order (e.g., Los Angeles and San Francisco).

Vaccination Questions

Q. Can an employer be held liable if they mandate an employee get the vaccine and the employee has side effects from the vaccine?

A. If an employee reports serious adverse side effects (e.g., anaphylaxis) from the COVID-19 vaccine as a result of an employer’s mandatory policy, the employer should contact their workers’ compensation carrier. Until 9/30/2022, covered employers may offer the use of available 2022 COVID-19 Supplemental COVID-19 Paid Sick Leave. All employers may offer the use of California Paid Sick Leave.

Q. Can an employer be held liable if an employee has underlying health issues, gets vaccinated, and has serious health complications and/or death attributed to having taken the vaccine under this new mandate?

A. Technically, employer liability could be found if they require an unvaccinated employee (regardless of health status) to get the vaccine in order to continue their employment and the employee develops a serious health complication as a direct result of receiving the vaccine. However, this would likely only apply in a situation where an employee did not want to get vaccinated and felt they were being forced to by their employer. In a case where an employee reports having preexisting conditions as a reason for declining the vaccine, the employee should be afforded the opportunity to be evaluated by their personal physician to determine if they should be cleared for the vaccine or be medically exempt.

Q. Can dentists incentivize their staff to obtain COVID-19 vaccines?

A. The Equal Employment Opportunity Commission Guidance states that employer incentives are allowed if the incentive is not so substantial as to be coercive. Of course, that likely depends on the circumstances, e.g., as compared to regular compensation or other bonuses for employees. Other incentives may include additional paid time off or making contributions to health savings accounts. Employers cannot offer additional incentives for employees’ family members to be vaccinated.

It’s important to note that under the Americans with Disabilities Act, employers must provide the incentive in an alternative way to employees who have a medical condition, disability or sincerely held religious belief that prevents them from being vaccinated. Under the ADA, employees must be able to enjoy the same “benefits and privileges of employment” as those without disabilities/religious beliefs (unless undue hardship is established). Unfortunately, the EEOC Guidance document did not address this specific question. Most legal guidance has been to provide alternative mechanisms for obtaining the incentive. For example, Kroger grocery stores offered a $100 incentive for employees to get the vaccine. Employees with a disability or religious belief that prevented them from getting the vaccine could qualify for the incentive by completing a health and safety education course.

Q. Can a dentist-owner require COVID-19 vaccination as a condition of employment in California?

A. A dental practice owner/employer in California may mandate vaccination as a condition of employment as long as the employer does not violate the Fair Employment and Housing Act and engages in the interactive process with each employee who requests a reasonable accommodation from the mandatory vaccination program. The laws may vary in other states. Under the July 26 state order, dental health care workers must show proof of COVID-19 vaccination or be tested weekly. Because weekly testing is likely to be more burdensome on the practice, employers should urge their employees to receive the COVID-19 vaccine by building vaccine confidence and facilitating vaccination. If employers choose to require employees to be vaccinated (instead of allowing the option of weekly testing, as provided in the public health order), they must consider the following:

  • Potential vaccine complications or side effects.
  • Reasonable accommodation for qualified medical conditions, including pregnancy.
  • Sincerely held religious objections.
  • Exposure to legal risks, such as discrimination claims stemming from workplace disparities between vaccinated and unvaccinated employees.

Make an individualized assessment of each unvaccinated employee’s ability to safely perform essential job functions, which may include certification from their health care provider. Even if your vaccination policy qualifies as a legitimate health and safety requirement, some employees may be exempt from complying under certain circumstances.

Q. If an employee is unvaccinated due to “sincerely held religious beliefs,” how can we verify this other than taking the employee’s word for it?

A. For religious accommodations, the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar; the employer should ordinarily assume that an employee’s request for religious accommodation is based on sincerely held religious beliefs. Employers should ask employees to provide a written request and document the discussions and accommodation.

Q. Can a dentist require a letter from a religious leader of the employee for a religious exemption?

A. Legally, an employer can require a letter. However, do so with caution. Generally, employers should assume a request for religious accommodation is based on a sincerely held religious belief. However, according to the EEOC, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a “limited factual inquiry and seeking additional supporting information.” A request for additional documentation shouldn’t differentiate from religious accommodations for other purposes.  Employers with strong questions about the employee’s religious belief should consult with legal counsel before requesting further information from an employee based upon a religious accommodation request.

We recommend you use the sample form for religious accommodations.

Q. Which religions have formally declared their opposition to the COVID-19 vaccines?

A. Title VII of the Civil Rights Act of 1964 defines religion to include “all aspects of religious observance and practice as well as belief.” It would be difficult to provide a specific list for an employer to reference. Employers should ask the employee to provide a written request explaining their need for religious exemption. Employers must reasonably accommodate employees’ sincerely held religious, ethical, and moral beliefs or practices unless doing so would impose an undue hardship on the employer. Employers should seek legal counsel before denying a religious accommodation.

Q. Does the doctor’s note for the vaccine exemption have to be from a U.S. licensed physician?

A. Complete and authentic medical certifications are essential to prevent abuse. The certification should make sense. For example, did the employee recently move from a foreign country? With the employee’s permission, an employer may attempt to contact the health care provider in order to authenticate the note. Employers should not seek additional medical information about the employee’s condition but reach out only to verify authenticity.

If an employer has a “good faith, objective reason” to doubt the validity of the medical certification that an employee provides for their own serious health condition, the employer may require the employee to obtain the opinion of a second health care provider. The employer must pay costs associated with obtaining a second opinion.

Q. Can I inquire about a candidate’s vaccination status during an interview?

A. For potential new hires, employers should not ask applicants vaccination questions until they provide a written offer of employment to the candidate. Employers are obligated to ask new hires about their COVID-19 vaccination status once hired. If a new employee is not fully vaccinated, they will be required to receive the vaccine or submit to weekly testing.

Testing questions

Q. If an employee gets the first vaccine, do they still need to test weekly until they complete the second dose?

A. Yes.

Q. If employees need weekly COVID testing, who bears the expense for both the testing and the employee’s time away from the office for testing?

A. We recognize that many health care sectors, including dental, are facing workforce shortages and, at the same time, Californians are still facing access-to-care barriers that have been further exacerbated by the cascading effects of the COVID-19 pandemic. The California Labor Commissioner has advised that the time to test (inside and outside of scheduled work hours) and any costs associated with required testing are the employer's responsibility. Some practices may choose to implement an employee vaccination verification requirement rather than the testing option provided under the July 26 order. A vaccination verification requirement also aligns with leading health care organizations’ recommendations to assist with mitigating the pandemic. Please keep in mind any employee vaccine verification requirement must include opportunities for reasonable accommodation.

Q. If mandatory testing for unvaccinated staff is required, who pays for the test or are they free?

A. The employee’s health insurance and/or community testing sites may generally cover the test cost. Below is guidance based on the type of coverage the employee may have:

For individuals with commercial health coverage: According to federal laws and a recent all plan letter from the Department of Managed Health Care, a health plan enrollee can get a COVID-19 test by any provider, in or out of their health plan network, at no cost to the enrollee. 

For Medicaid enrollees: The Department of Health Care Services states that Medi-Cal policies for most COVID-19 diagnostic tests have a frequency limit of two per day, per patient for each code. CPT codes 86408 and 86409 have a frequency limit of one per day, per patient for each code.

COVID-19 testing is a covered Medi-Cal benefit and can be provided to enrolled beneficiaries, based on medical necessity, as ordered and provided by or under the direction of a physician or other licensed practitioner of the healing arts within their scope of practice as defined by state law or ordered by a physician but provided by a referral laboratory. Tests for the detection of SARS-CoV-2 or the diagnosis of COVID-19 are mandatory Medicaid laboratory services as described in the federal Social Security Act, Section 1905(a)(3) and the Code of Federal Regulations (CFR), 42 CFR 440.30.

For individuals without any form of health coverage: The recommendation is for employers to cover the cost of the testing (and the employee’s time for testing) in the event they are unable to administer tests or find a free COVID-19 testing option.

Q. How does one manage testing for an employee who works for more than one employer?

A. One test for the employee should be sufficient for all employers each week. Employers are encouraged to work with their employees and agree upon a fair system of rotation for reimbursement/cost coverage each week.

Q. A person who has had COVID-19 can test positive for as long as three months after their infection. In the 90 days after a COVID-19 infection, should we continue to test an unvaccinated individual who is not symptomatic?

A. According to the California Department of Public Health, individuals who had a positive viral test in the past 90 days and are now asymptomatic do not need to be retested as part of a screening testing program; testing should be considered again if it is more than 90 days after the date of onset of the prior infection or if new symptoms occur. For individuals who develop new symptoms consistent with COVID-19 during the three months after the date of initial symptom onset, if an alternative etiology cannot be identified, then retesting for SARS COV-2 can be considered in consultation with an infectious disease or infection control experts.

Q. What type of COVID-19 testing is available?

A. To comply with the state public health order, unvaccinated individuals will need either an antigen or PCR test for the weekly testing. Tests that have the FDA emergency use authorization are listed here and here. Here is a list of local testing locations.

Additionally, over-the-counter, self-administered test kits are sold through multiple outlets such as pharmacies, online stores and dental supply companies.

Additionally, the state has provided a lab list through the COVID-19 Testing Task Force. Some of these labs will sell test kits, which an individual can use to collect samples and then forward them to the lab for processing. Other labs will process the samples but leave customers to purchase their own test kits.

Q. Will the testing be weekly for part-time staff?

A. Yes, the public health order requires that all individuals working in a health care facility or setting either be vaccinated or tested weekly.

Q. How does the employer document proof of weekly employee testing and results?

A. Employers should have a plan in place for tracking test results, conducting workplace contact tracing, and reporting results to local public health departments as requested. No specific documentation mechanism is required. Employers can create a spreadsheet or use a platform currently in use to track confidential employee documents. All documentation must be kept in a safe and confidential manner with limited access to those with need-to-know access and these records should be retained for five years from the date of the employee’s departure.

Q. Do delays in receiving testing results impact an employee’s ability to enter the practice to work?

A. It depends on the reason for the testing. If an employee knows they had close contact with an individual who tested positive for COVID-19 prior to testing, the practice should follow Cal/OSHA Emergency Temporary Standard protocols for returning to the workplace. Very specifically the employee should wear an N-95 mask at all times and not eat with any other employee to limit possible exposure to co-workers. If an asymptomatic employee has returned to work while awaiting COVID-19 screening results and receives a positive test result, the practice should follow notification and Cal/OSHA protocols. The employer should determine if any employees will need to be paid for time out of the practice.

Q. Which health care personnel is authorized to administer COVID-19 tests? Can an RDH or an RN working in a dental practice administer the test to colleagues?

A. Administration of tests is beyond the general scope of an RDA and RDH, but test administration is within the scope of a licensed RN within a dental practice.

Q. What if an employee refuses vaccination and will not take the test every week or maybe wants to take it once a month? Are these grounds for termination (knowing how difficult it is to find a replacement)?

A. The order does not provide for alternative screening. One option is to place the employee on unpaid leave should they refuse to comply with the law. Termination of an employee who refuses vaccination and weekly testing poses a legal risk and should only be done after speaking with an employment law attorney.

Q. Can I purchase “at-home” tests for my employees and have them do the testing at my office?

A. Yes, as long as the PCR or antigen tests are authorized by the FDA and the employee administers the test themselves.

Q. When should the employee test? Can they test on the weekend so they can have the results in at the beginning of the week?

A. Chose a day and time of the week that works best for individual employees. Be consistent. An employee can test on a weekend, but the employer may be responsible for paying for the time the employee takes to be tested. Be aware that an employee may continue to work while waiting for weekly screening test results as long as the employee is asymptomatic.

Q. If an employee has had Covid-19 and their medical doctor told them that they will test positive for the next three months, what do we do about testing?

A. The employee is not required to do the weekly testing until more than 90 days have passed since the date the employee is considered recovered from COVID-19 (10 days since the date of the positive test or when symptoms were first experienced). The employee will no longer need to test weekly two weeks after receiving the second vaccine dose.

Q. So if we elect to mandate vaccination, then those who have qualifying medical/religious exemptions don’t need to be tested weekly?

A. Any individual who is not fully vaccinated or who tested positive for COVID-19 within 90 days must test weekly. There is no medical or religious accommodation to testing.

Resources:

CDA Vaccine Confidence Toolkit

COVID-19 employee weekly testing tracking form

COVID-19 mandatory policy instructions for employers and sample mandatory vaccination policy

How To Pay Staff During a COVID-19-Related Absence

Religious accommodation request form – COVID-19 vaccination

Reporting Symptoms/Positive Test for COVID-19

Self-certification of employee vaccination status

Vaccine Medical Exception Form

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